German Chancellor Angela Merkel has come under intense international scrutiny over authoritizing state attorneys to prosecute a TV comedian over a vulgar, satirical poem he performed lampooming Turkey’s brutal dictator Tayyip Recep Erdogan. But the issue goes far beyond Merkel’s cozying up to the tyrant in Ankara; Germany’s libel and anti-insult laws have long been a weapon of choice for those seeking to suppress the marketplace of ideas. Hitler himself, prior to assuming power, was also a vicious libel plaintiff. In Germany, you can even get into free speech trouble for “libeling” the dead!

It was in the context of this row that another state TV comedian, Jan Boehmermann, dedicated his show to discussing the extent of the free speech rights guaranteed on paper by Article 5 of the German Basic Law. He highlighted that laws draw the limit of the permissible at a legal concept known as Smäh-Kritik, vilifying criticism. He said he would perform a poem named after the concept to exemplify that, and introduced it saying “what comes next would be forbidden in Germany”. Then he went on to read out a vulgar text hyperbolically accusing Erdogan, among many other things, of fellating with a “hundred sheep”, having a small penis, smelling worse than the fart of a pig and watching child porn as well as beating women. He concluded his poem saying, “this is what you can’t say in Germany”.

Despite this, Boehmerman’s case also shows how Germany’s conversation about free speech is broken. Much of the critical public reaction has not been to defend Boehmerman’s right, per se, to engage in such satire, but rather has become an exercise in not-so productive group outrage against Article 103. Politicians have described the law as a “pre-democratic” remnant of an age where insulting kings was still seen as a major crime, highlighting that the law establishes much higher maximum penalties (5 years in jail) than the regular law against insults (one year in jail). The popular Focus Magazine prominently featured a bow-tie wearing constitutional law expert arguing that this violates the principle of equality before the law, making it incompatible with Germany’s Basic Law. The problem with this line of reasoning is that every moment spent discussing this redundant law is one not spent discussing the wider host of censorious, unnecessary libel laws that stifle free thought in Germany, including the very same Article 185 that could yet be used to prosecute Boehmermann. The Boehmerman case has already had a knock on effect, with a Berlin administrative court banning the reprinting of his poem for a planned demonstrationagainst “insulting goats” that free speech activists had intended to hold outside of the Turkish embassy, although the judges did not rule on the legality of his poem more widely.

Germany Anti-Insult and Libel Laws – Anti-Democratic and Stupid

Germany has a plethora of highly restrictive libel and anti-insult laws of the sort one would more expect to find in Putin’s Russia than Merkel’s supposedly tolerant Germany. Aside from the laws already mentioned, the rarely usedArticle 189 bans the “disparagement of the memory of the dead”, Article 188 establishes particularly high penalties for “smearing and defaming” a “person involved in political life” if the speech in question is connected to the person’s political activities and “makes their public work significantly harder”. Article 192 explicitly says that the truth of a statement does not preclude it from constituting an illegal, punishable form of expression if it is insulting in the context of the way the statement was made. Underlying these laws is the idea that people have “personality rights” (Persönlichkeitsrechte) that a democratic state is obliged to protect from being compromised by demeaning speech.

Much of this can be traced down to the haste and post-war compromise with which the Basic Law, (then Western-) Germany’s quasi-constitution was developed in the late 1940s after the fall of Hitler’s Nazi dictatorship. Article 5, its’ provision on free speech, reflects this perfectly. It states that everyone shall have a right to freedom of expression, information and art, without the existence of censorship, but then goes on to qualify this, making clear: “These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour”. Theodor Heuss, a deputy to the 1948 parliamentary council that drafted the Basic Law, later said Article 5’s limiting provisions were consciously vague and implied that the “right to personal honour” arose out of an egalitarian desire to ensure that the same protections against smears would not just be available to officials of the state (as had de facto been the case in Nazi Germany, where the dignity of dissidents and democrats had not been respected by the state), but to all people.

This ties in with the Basic Law’s wider rhetoric of the “inviolability of the dignity of man”, a vague and unspecific platitude that would no doubt have been acceptable to both socialists and conservatives in post-Hitler West Germany. The Basic Law was originally, as it itself stated, intended to be only a compromise placeholder until such a time as a reunified Germany could pass a new constitution. But, given that the Basic Law gradually became a powerful emotive symbol of a new, post-totalitarian sense of Germanness, there little chance of this happening, and Germans will remain stuck with its inadequate free speech protections.

But the historical lack of emphasis on true free speech still does not explain the reluctance of Germany’s current political, social and literary elites to
demand a long-overdue expansion of speech rights. An understanding of this must be found elsewhere. An opinion piece penned by the editor-in-chief of Berlin’s well-regarded, intellectual Berliner Zeitung exemplifies what many in Germany’s cultural elites think about the Boehmerman case. Peter Huth wrote “Merkel did everything right… Even if there is a guilty verdict, Boehmermann will easily be able to live with the fine”. It is unquestionably true that with a good (expensive) lawyer, waves of public support and a well-regarded professional background, no German TV presenter or big-league newspaper editor is likely to face jail or financially crippling fines for any insults he/she may throw at anyone. The almost certain knowledge that they themselves will never face such a predicament is exactly why many in Germany’s powerful cultural and political elites find it so difficult grasp the chilling, censoring effect Germany’s anti-insult laws can have on those less privileged financially, socially or professionally; Local bloggers, small town newspapers, court case defendants, dissident refugees and historical researchers who already live on the economic margins of society but are the lifeblood of public debate. To many of these people, even the threat of a time-consuming police investigation or state prosecution can be the determining factor in not pursuing a news story, not expressing their opinion or even not exercising their fundamental due process rights.

In 2008, a small-time hotel operator who had been detained on charges of unlicensed commerce, was visited by a police inspector in jail who informed him that prosecutors had just obtained and fulfilled a search warrant for his private apartment. The hotel operator protested vigorously to the police
inspector. He said that his lawyer should have been present during the search, and called the state prosecutor who had requested the search warrant a “breaker of the law whose days in the judicial system are counted”. He was later investigated, prosecuted and convicted by a county court of “disparaging criticism” and “defamation” towards the state prosecutor for saying this, as well as of other charges unrelated to those comments, but an appeals court eventually overturned the verdict in 2011. Criminal charges of “smearing” (Verleumdung) were also used by the state to prosecute a victim of child sexual abuse who has forced to work in an illegal child brothel in the 1990s. Mandy K. had claimed in an interview with prosecutors investigating the case and publically, that that a senior judge had been among those visiting the brothel as a client. Her case sparked a national debate about allegations of judicial corruption as well as police attitudes to victims of sexual assault, and there is no record of her being convicted of the charges. But even being investigated by police and taken to court is a time-consuming, costly experience that discourages critical expression in the face of officialdom.

Germany’s libel laws also have an unfortunate history of stifling the discussion of vital political topics. One of contemporary Germany’s most prominent far-left politicians, Gregor Gysi, has, since the 1990s, faced allegations of having collaborated with communist Eastern Germany’s feared Stasi ‘state security’ agency to inform on his clients, some of whom were dissidents, while he was a solicitor in Eastern Germany prior to re-unification. He vehemently denies the allegations, which have never been proven, and became known as the “red law-suit monger” in 1990s over his successful efforts to sue those making such allegations for defamation. Despite the fact that a parliamentary committee of inquiry had deemed the allegations of informal collaboration with state security to be credible and had accused Gysi of being included in an effort to bring about the
“as-effective-as-possible suppression of the democratic opposition in the GDR [Eastern Germany]”, Gysi was able to use to the judicial system to obtain an
injunction under libel law banning former Eastern German dissident Freya Klier from repeating comments suggesting that Gysi had ‘not represented his clients but had instead spied on them and sought to control them together with his comrades’. Prestigious news-magazine Der Spiegel characterized the efforts to silence (in effect, if not necessarily intent) the debate using the judicial system as ultimately unsuccessful. But it also described the consequences of Gysi’s lawsuits for free expression at the time in no uncertain terms; “regional newspapers reacted in a scared manner, in some editors offices one preferred to think twice about whether one should report about Gysi and the Stasi- and then didn’t”.

Of course, when vague laws exist, is there nothing to stop them from being used counter to the way lawmakers intended. Modern German Neo-Nazis have developed considerable expertise in attempting to use anti-insult laws and libel complaints to hassle journalists and anti-racist campaigners, href="http://www.spiegel.de/spiegel/print/d-13683058.html">a strategy they themselves called “penetrant legalism”. EvenHitler, prior to taking power in 1933, himself filed a vexatious libel lawsuit in 1930 against Karl Rabe,the editor of the pro-democratic Munich Telegram newspaper. Rabe had been responsible for an article suggesting that Hitler had attempted to bully and threaten Crown-Prince Rupert of Bavaria in case he publically expressed criticism of a ballot measure Hitler has advocating for. Yes, that’s correct, a soon-to-be dictator commanding an army of thuggish, Sturm-Abteilung death squads had his thin skin offended by an editor who documented how he had acted like school-ground bully towards an ageing aristocrat. And the very democratic, judicial institutions he was trying to destroy humoured him by allowing him to bring his vexatious and censorious suit.

Meanwhile, Germany’s cultural and political elites love pointing the finger at supposed violations of free speech and press freedom elsewhere in the world, particularly in neighboring Poland. There, their criticisms of the current Law & Justice Party government were perceived to be so out-of-touch that they attracted furious condemnation even from one of the country’s main opposition leaders, the maverick Pawel Kukiz. He urged them to look “more closely at democracy in your own country”. Perhaps they should take his wise words to heart and start by throwing out Germany’s useless, repressive anti-insult laws. All of them.

Comments

Defamation laws certainly have their place. There are times when a false statement can ruin a reputation and affect a person's life deeply. However, I think even the defamation laws in the United States go to far, and it sounds like Germany's defamation laws go much further. Overly strong defamation laws, especially when wielded by those already possessing wealth, fame, and power, can dampen public discourse and silence legitimate critics. Defamation laws in both countries are in need of reform in my never humble opinion.

It is a curious situation that both denying the Holocaust, and asserting it, are acts for which German law allows one to be prosecuted.

Echoing JD's comment, there are problems not only with traditional spelling and grammar, but also in choosing anchor text. For instance, in the phrase "Having Turkish citizens who purportedly compare him to Gollum from Lord of the Rings prosecuted apparently doesn’t satisfy his urges", having the anchor text start at "purportedly" and end at "prosecuted" fosters the reading that "from the Lord of the Rings prosecuted" is all part of the description of Gollum. Better would be to have just "prosecuted" as the anchor text.

There is a certain quality to a student/reporter – assuredly part of the cultural elite he so soundly criticizes – closing his article by quoting Polish political elites with an adage about cleaning up your own messes first.

But then again maybe all is stellar in British defamation law since 2013.

What keeps astounding me are different things, however. There are the scary anecdotes, of course. "Germany’s libel laws also have an unfortunate history of stifling the discussion of vital political topics." Such as… Gysi. Whose libel suits streisanded all over the German media-scape, counter to what Mr Cortbus suggests here based on a Spiegel comment, by his own prior argument even. Germany has a fairly vibrant print media landscape – though it is in continuous crisis mode as The Internet happens to it. There is the counterbalancing Nazi anecdote for the other side of the political isle. As if being a Nazi – or for what amounts to be in quotidian American language "communist" politician – somehow lessens the protection people are supposed to get from the law. There is the classy Hitler comparison for those of us not already disgusted with the terrifyingly oppressive state of German law. (Though that may also be par the British course.) The point which should scare us – if a law exists it will be used by *gasp* terrible people.

I'm getting somewhat mixed messages from this bit of the article.

What this article presents is some evidence of the fact that the powerful and those with money will find ways to instrumentalize the legal system to their ends. The "disparagement" of a state prosecutor finds echoes in the "assaults" committed by handcuffed suspects in American police cars. The Shahs supression of dissident expression in Mr Trumps categorial insistence on suing everybody. And then Erdogans little tyrannical stunt. They are all evidence of little tinpot dictators trying to instrumentalize the law. And this is, surprisingly perhaps, a constant through different legal systems.

And then there are the odd things: The, as the cited article hints heavily, mentally ill pensioner with prior convictions who cannot even stop calling the court a "court of bitches" while it is sitting, who interrupts proceedings, calls the prosecutor a liar during oral argument and who repeatedly refuses the aid of his public defender is an odd champion of free speech rights and the injustice of German law. Not because he is indigent or powerless, but because he is so obviously guilty of what an American might call harrassment.
There is the man with 8 prior convictions for various offenses who tried to intimidate someone into giving him an alibi. Surely that person would be upstanding if not for the terrible injustice of German law.

The solution to all these problems is, of course, the American free speech model. No matter historical precedent of market failure of the Weimar model in Germany, which saw an immense amount of conflicting speech and partisan publication. (We can argue quite a while about how free it was.) No matter the slightly different take of the German idea of Persönlichkeitsrechte, which indeed persist after death, making that disparagment of the dead clause a logical consequence – and which fade as memory fades. You could (quite probably, IANAL) not defame Luther, even if he was an exceptionally important and memorable personality. No matter the complexities of enacting simple solutions across different complex systems.

I deeply support a call to abolish §103. I would even support a reform of libel law. Advocating for simple solutions to complex constitutional tensions enshrined in German law, on the other hand, seems to be something that is best left to inquisitive reporters in Britain, who do not have dirty houses to clean.

New sexual health guidelines have been issued to supporters of Erdogan's AKP party: Before you have intercourse, make sure the camel you have chosen isn't known to kick!

Angela Merkel visits her doctor. After examining her back he looks very concerned. Merkel asks why: well, on the x-ray there's something that should be there, but I can't seem to find it. I think I'll need to get out the magnifying glass. Merkel replies what is it. The doctor responds your backbone.

Special tip to Team Erdogan's legal advisors: If you don't like these jokes, make sure youre very clear that maliciously harrassing Erdogan could be illegal under the Skamania County (WA) Protection of Undiscovered Species Act 1969. Also be sure to mention in your legal filings that the jokes violate the libellous slander section of Logan Act coz precedent decision in Arkell v. Pressdram. For extra brownie points remember to remind the judge that because the 21st amendment overrules the 18th, the 1st amendment law on free speech has also been over-ruled by the 420th. You are sure to win, 100% guaranteed!

Firstly, my heritage and nationality is of little relevance, and your presumptions in that regard may not be as true as you think. In any case, contrary to your insinuation, I’m happy to criticize anti-free speech laws in the UK too, and with equal fervor. Scrap all the censorious Ofcom rules about political expression on TV, move the burden of proof for truth in libel cases from the defendant to the claimant, massively scale back forum-shopping libel tourism, Hell Yea! The government’s long-dreamed-of state-regulated, chartered press, Hell No! And if someone from outside the UK, including your fine self, wants to campaign for all that, I don’t see a problem with that either.

When I choose to defend free speech, I’m not looking for ‘champions’. People victimized by anti-free speech laws are often not saints (and I am sure I am not one either). Many of them are deeply flawed people, some with unpleasant views or personal backgrounds. What I am saying is that punishing them under authoritarian, repressive and fundamentally pointless laws doesn’t make society any better or freer. If they have committed other offenses such as harassment or witness intimidation, Germany does have laws regarding those offences; They can be charged and, if guilty, convicted using these. None of that is relevant to the question of whether it is unjust and overbearing for a state to have the authority to jail them for uttering words perceived to be insulting. Jailing them for that is, and remains, a threat to democracy and individual rights.

Personally, I would not call a state that, such as Federal Republic of Germany, has an extremely powerful domestic political surveillance agency, The Verfassungsschutz, that frequently spies on arbitrarily-defined enemies of the state, non-mainstream religious believers and critical journalists, a particularly vibrant democracy. But that is a subject for another time…

Finally, you mentioned the “German idea of Persönlichkeitsrechte” (personality rights). What you did not mention is that this notion of a “right to personal honour” has its roots in medieval, feudalist, anti-egalitarian ideals of born-to-rule aristocracy. I’d highly recommend to you the unparalleled historical study of Germany’s libel laws; Ann Goldberg’s Honor, Politics, and the Law in Imperial Germany, 1871–1914, published by Cambridge University Press in 2010: 18th century Prussia for example had highly developed libel laws designed to protect the social elites while keeping the poor peasantry in 'their place'; The higher the social rank of the insulted, the higher the penalty or prison sentence. Only those of the “higher order of the bourgeoise” had the right to appeal libel verdicts to a judicial court, and they could get their legal costs paid by the state even if they lost, whereas the poor had to pay their own legal bills whether they won or not. In Imperial Germany, libel and ‘honour’ laws became a literal mass instrument of domination, used to systematically censor the social-democratic press. As the book states, “repression in the interests of state ‘honour’ went much further, pervading the daily life of citizens as officials at all levels enforced their rights, as representatives of the state, to respect and obedience”. To quintessential, prolifically litigant, imperial-era tyrant Bismark, “the defamation lawsuit was a critical tool of rulership”. Thus, in my view, such hypocritical norms of ‘honour’ propped up Bismark’s barbaric, dishonorable empire: An empire built on breath-taking ethnic cleansing against Polish people and Polish Jews (look up Bismark’s 1886 “Polish Question” Speech). Of course, as Ann Goldberg documents, oppressed minorities tried, with some well-deserved success, to fight back by appropriating for themselves the system’s narratives of ‘honour’ as self-protection. But that does not and cannot, for me at least, change the fact the idea of enforceable social ‘honour’ per se is injust, dictatorial and deeply rooted in an anti-modern social myth that is the opposite of reason, equality-before-the-law, self-critical enquiry and individual rights.

Hence, I have no truck with such a state-enforced “right to personal honour”. None at all. I don’t want it. And I don’t to need an authoritarian state to restrict the very real freedoms of others to enforce this sad remnant of days long bygone.

The Hitler Lawsuits fascinate me, are there any more examples in a similar vein that you know of?

It's the kind of little thing that gets eclipsed by worse crimes, are there any other crazy dictators who, prior to coming to power, looked like one of those nutters constantly trying to sue people for mentioning their name or similar?

However, I think even the defamation laws in the United States go to far, and it sounds like Germany's defamation laws go much further.

I'm curious about how you believe American defamation law goes too far. The standard is such that it's very difficult for a private figure plaintiff to win, and all-but-impossible for a public figure. Or is it a matter of the cost of defending against even a bogus claim if there isn't an effective anti-SLAPP law in place?

Primarily it is the latter. I think we need an effective national anti-SLAPP law to avoid meritless defamation suits being used to silence critics that do not have deep pockets. There are truly valid defamation cases, but there are no shortage of cases of defamation suits being used to silence critics and without a strong anti-SLAPP one (I am fond of the version implemented in Nevada), that can be quite effective.

I also personally think that the actual malice standard articulated in cases such as New York Times v. Sullivan should apply to all defamation cases rather than merely to public figures. With that said, I freely acknowledge that such a move could dissuade some potential plaintiffs who have a valid case and I know that reasonable people disagree with me on that. That is a delicate balancing act, though it is my belief that applying the actual malice standard shifts the balance appropriately.

Nice article, and I completely agree that Free Speech is one of the things Germany can and should learn from the US. Still, it isn't nearly as bad as it looks as long as you're moderately smart about what and how you say it. Basically:

– Don't insult people directly
– Don't accuse people of crimes unless you can prove it
– Be very careful around religion, Nazis or the Holocaust

The first two are easily dodged by insulting the ideas those people hold instead (which is usually what you meant to do anyway), and by only showing evidence of crimes without drawing the conclusion yourself (which, incidentally, also makes for a better argument).
Doing it in an oblique way "I can't afford to talk about whether or not I believe Erdogan had sex with one or more goats." is likely to get you prosecuted if done visibly enough, but unlikely to get you convicted (which is still bad enough).

The last one needs to be gone, yesterday. These laws were written when mentioning these things publicly in a careless way could still have started a riot, but those times are long gone. The laws even include the condition that you have to do it in a way fit to disturb public peace – but that condition is sometimes stretched quite far. The usual interpretation seems to be "If it was public, you're screwed."